actual custody of the body
In mortuary law, actual custody of the body is the physical possession or control of a human body. Actual custody is distinct from the legal authority to decide how the body will be disposed of, such as burial, cremation, or donation for medical research. That legal authority is referred to in different contexts as constructive custody, the right of disposition, or the right of sepulcher.
In practice, a funeral home or mortician typically has actual custody, while the decedent’s next of kin retains constructive custody. Constructive custody may allow its holder to recover damages under common law if the actual custodian mishandles, interferes with, or fails to properly care for the body. Actual custody can also create legal liability if laws governing the possession and handling of human remains are violated. These laws exist at both state and local levels, including provisions such as Article 205 of the New York City Health Code.
[Last reviewed in August of 2025 by the Wex Definitions Team]
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